Citation Nr: 9910904
Decision Date: 04/20/99 Archive Date: 04/30/99
DOCKET NO. 95-11 818 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an increased rating for psychiatric
disability, to include post-traumatic stress disorder (PTSD),
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1967 to
January 1969, and from September 1972 to April 1974.
This matter comes before the Board of Veterans' Appeals
(Board) from a February 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan. This case was remanded by the Board in
August 1997 for further development; it was returned to the
Board in December 1998.
The Board notes that the veteran, in a January 1998
statement, appears to have raised the issue of entitlement to
service connection for stomach and kidney disabilities and
the issue of whether new and material evidence has been
submitted to reopen a claim for service connection for
seizure disability. These matters are therefore referred to
the RO for appropriate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran's psychiatric disability is productive of
social and industrial impairment which more nearly
approximates considerable than severe.
CONCLUSION OF LAW
The criteria for a 50 percent evaluation for psychiatric
disability have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West
1991); 38 C.F.R. § 4.132, Diagnostic Code 9400, 9411 (1996);
38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9400, 9411 (1998);
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a).
Further, the Board is satisfied that all relevant facts have
been properly developed and that no further assistance to the
veteran is required to comply with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1998) and Schafrath
v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed
all evidence of record pertaining to the history of the
service-connected disability. The Board has found nothing in
the historical record which would lead to the conclusion that
the current evidence of record is not adequate for rating
purposes. Moreover, the Board is of the opinion that this
case presents no evidentiary considerations which would
warrant an exposition of remote clinical histories and
findings pertaining to this disability.
Factual Background
Briefly, as was noted in the Introduction, the veteran's
service ended in April 1974. In February 1987, service
connection was granted for generalized anxiety disorder,
evaluated as 10 percent disabling. This evaluation was
increased to 30 percent disabling in November 1995; the 30
percent evaluation has remained in effect since that time.
In November 1998, while the case was in remand status,
service connection for PTSD was granted, although the rating
assigned the veteran's service-connected psychiatric
disability remained 30 percent.
On file are VA treatment records for January 1984 to February
1991 which show that the veteran was last treated for
psychiatric complaints in 1988. At that time his complaints
included nightmares, and he was diagnosed with generalized
anxiety disorder; this disability was described by his
treating physicians as not representing a significant
problem.
On file is the report of a December 1994 VA examination, at
which time the veteran complained primarily of an inability
to direct his activities prudently. He informed the examiner
that he had worked for the same employer for more than eight
years. He reported that his supervisor was aware of and
sympathetic to his psychiatric problems, and he indicated
that his supervisor controlled his tendency to drift from
priority needs and concerns. On mental status examination
the veteran exhibited extreme hyperactivity and motor
restlessness, and the examiner diagnosed the veteran with
generalized anxiety disorder evidenced by restlessness, sleep
disturbances and difficulty concentrating.
The veteran was afforded a hearing before a hearing officer
at the RO in September 1995. At that time, the veteran
testified that he experienced sleep disturbances and
restlessness as the result of his psychiatric disability, as
well as intrusive thoughts and occasional loss of temper.
The veteran reported maintaining two friendships, but he
stated that he otherwise dislikes social interaction, and he
averred that he becomes very nervous when approached from
behind. He indicated that he prefers to work alone at his
place of employment, and he testified that when he does
interact with other employees, his anxiety causes him to
stutter and his hands to shake. The veteran's wife testified
that the veteran was very high strung and restless, and she
confirmed that he dislikes social interaction other than with
family members. The veteran's wife also suggested that the
veteran's concentration was impaired.
The veteran was afforded a second VA examination in September
1995, at which time he informed the examiner that the
supervisor at his place of employment was in fact
unsympathetic, although the veteran admitted that his
supervisor was tolerant of his emotional limitations. The
veteran indicated that while he was capable of working, his
fear of making mistakes had essentially relegated him to
performing job functions with which he was very familiar, and
that he was unable to accept new tasks due to the anxiety
such tasks would provoke; he admitted that he was able to
perform well-established routine job functions in a minimally
acceptable manner. He also indicated that his coworkers
regularly make derogatory comments about his disability.
The veteran's wife informed the examiner that the veteran
exhibited restlessness and impaired concentration, and she
reported that the veteran was unable to complete simple well-
known tasks. She also reported that the veteran would not
leave his residence unless accompanied by a family member for
essential activities, or for his son's scout activities. She
indicated, in essence, that the veteran is otherwise socially
isolated, and exhibits anxiety even at the prospect of
entertaining visitors in the house. Following evaluation of
the veteran the examiner rendered a diagnosis of generalized
anxiety disorder, which was based on the inability to perform
the full range of former job functions, an inability to
accept new job assignments, and symptoms of restlessness,
agitation, sleep disturbances, impaired concentration and
social withdrawal. The examiner assigned the veteran a
Global Assessment of Functioning (GAF) score of 60.
Pursuant to the Board's August 1997 remand the veteran was
afforded a VA examination in August 1998. At that time he
complained of nightmares occurring twice per week and
flashbacks which occur up to twice per day; he reported
experiencing a state of total disassociation during his
flashbacks, although he recovers quickly. The veteran also
complained of sleep difficulty, anxiety and agitation. He
reported occasional anger outbursts and complained of
impaired impulse control characterized by rapid loss of
temper, but he indicated that he had exerted a modest degree
of control over these episodes, and he denied a history of
physical violence other than with respect to one incident in
which he struck his father during a flashback episode. The
veteran described his symptoms as fairly severe, and he
stated that he was frightened and agitated on a daily basis,
although he admitted that he continued to maintain a routine
life, largely because of his supportive wife. The veteran
reported that he had worked for the same employer since 1988.
He indicated that he does not socialize, but that he had
maintained one friendship since service, and he indicated
that he associated with that person up to twice per week. He
informed the examiner that he was suspicious and
uncomfortable around people, and that he tends to isolate
himself to his residence.
On mental status examination the veteran was alert and
oriented. His speech was clear, coherent and goal directed.
His affect and mood were described as anxious and somewhat
depressed, although he denied any suicidal or homicidal
ideation. The veteran denied experiencing true
hallucinations or delusions. His memory was described as
reasonably good. The examiner diagnosed the veteran with
PTSD and concluded that his symptoms were severe in nature,
although the examiner described the social impairment
occasioned by the veteran's stress as moderate to marked,
evidenced by isolative tendencies. The examiner assigned the
veteran a current GAF score of 70, with a GAF score ranging
from 65-70 for the prior year; the examiner based this score
on the veteran's demonstrated ability to successfully
maintain employment and to maintain a secure relationship
with his family.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1998). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1998).
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1998).
The Board notes that effective November 7, 1996, VA revised
the criteria for diagnosing and evaluating psychiatric
disabilities. 61 Fed. Reg. 52695 (1996). On and after that
date, all diagnoses of mental disorders for VA purposes must
conform to the fourth edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV). 61 Fed.
Reg. 52700 (1996) (codified at 38 C.F.R. § 4.125). The new
criteria for evaluating service-connected psychiatric
disability are codified at newly designated 38 C.F.R. § 4.130
(1998). In Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991), the Court held that where the law or regulation
changes after a claim has been filed or reopened but before
the administrative or judicial appeal process has been
concluded, the version most favorable to the appellant
applies unless Congress provided otherwise or permitted the
Secretary of Veterans Affairs to do otherwise and the
Secretary did so.
In the present case, the Board notes that the RO evaluated
the veteran's claim under the previous regulations in making
its rating decision of February 1995. The March 1995
Statement of the Case and November 1995 Supplemental
Statement of the Case referred to the regulations then in
effect. In January 1997 and November 1998 the RO issued
supplemental statements of the case which considered the
veteran's claim under the new schedular criteria.
Accordingly, there is no prejudice to the veteran under
Bernard v. Brown, 4 Vet. App. 384 (1993), and in light of
Karnas, the Board will proceed to analyze the veteran's claim
under both sets of criteria to determine if one is more
favorable to the veteran.
A. Previous Psychiatric Disability Rating Criteria.
The field of mental disorders represents the greatest
possible variety of etiology, chronicity and disabling
effects. 38 C.F.R. § 4.125 (1996). The severity of
disability is based upon actual symptomatology, as it affects
social and industrial adaptability. 38 C.F.R. § 4.130
(1996). In evaluating impairment resulting from the ratable
psychiatric disorders, social inadaptability is to be
evaluated only as it affects industrial adaptability based on
all of the evidence of record. 38 C.F.R. § 4.129 (1996).
The diagnostic codes found at 38 C.F.R. § 4.132 (1996)
provide that a 30 percent rating is warranted for definite
impairment in the ability to establish or maintain effective
and wholesome relationships with people. The psychoneurotic
symptoms must result in such reduction in initiative,
flexibility, efficiency and reliability levels as to produce
definite industrial impairment. A 50 percent rating is
warranted when the ability to establish or maintain effective
or favorable relationships with people is considerably
impaired; and where, by reason of psychoneurotic symptoms,
the reliability, flexibility and efficiency levels are so
reduced as to result in considerable industrial impairment.
A 70 percent rating is warranted when the ability to
establish and maintain effective or favorable relationships
with people is severely impaired. In such cases, the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment. A 100 percent schedular evaluation is
warranted when the attitudes of all contacts, except the most
intimate, are so adversely affected as to result in virtual
isolation in the community; there are totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic, and explosions of aggressive energy
resulting in a profound retreat from mature behavior; or
there is a demonstrable inability to obtain or retain
employment. 38 C.F.R. § 4.132 (1996). The Board notes that
each of the three criteria for a 100 percent rating is an
independent basis for granting a 100 percent rating. See
Johnson v. Brown, 7 Vet. App. 95 (1994).
In Hood v. Brown, 4 Vet. App. 301 (1993), the United States
Court of Veterans Appeals stated that the term "definite" in
38 C.F.R. § 4.132 was "qualitative" in character, whereas the
other terms were "quantitative" in character, and invited the
Board to construe the term "definite" in a manner that would
quantify the degree of impairment. In a subsequent opinion,
the General Counsel of VA concluded that "definite" is to be
construed as "distinct, unambiguous, and moderately large in
degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VAOPGCPREC 9-93 (Nov. 9 1993). The Board is
bound by this interpretation of the term "definite." 38
U.S.C.A. § 7104(c).
The Board observes that the evidence of record demonstrates
that the veteran's disability picture for his service-
connected psychiatric disability, to include PTSD, most
nearly approximates the criteria for a 50 percent evaluation.
The veteran's symptoms, as documented on several VA
examinations on file, include frequent flashbacks, occasional
nightmares, anxiety, agitation, insomnia, decreased
concentration and some degree of impaired impulse control.
The veteran reported difficulty in interacting with coworkers
and people in general, the September 1995 VA examiner
concluded that the veteran's psychiatric symptoms effectively
rendered him unable to perform the full range of former job
functions and to accept new assignments, and the August 1998
VA examiner described the veteran's symptoms as severe. In
light of the medical evidence demonstrating significant
reduction in flexibility levels and in the ability to
establish or maintain effective or favorable relationships,
the Board is satisfied that the evidence demonstrates that
the veteran's psychiatric disability produces considerable
impairment of social and industrial adaptability. However,
the Board concludes that a rating in excess of 50 percent is
not warranted.
In this regard, the Board points out that despite complaints
of poor impulse control, the veteran denied homicidal
ideation, has not reported a significant history of physical
violence, and has reported exercising a moderate level of
control over his outbursts. Moreover, despite a depressed
and anxious affect on examination, the veteran has denied
suicidal ideation and has not reported the occurrence of
panic attacks. The veteran presented as alert and oriented
on examination, without evidence of hallucinations or
delusions, and with adequate memory function. Although the
veteran's wife reported that he is unable to complete simple
well known tasks, the Board finds that her testimony is of
marginal probative value in this regard in light of the
assessments by the veteran and the September 1995 and August
1998 VA examiners to the effect that the veteran is, in fact,
still able to perform his assigned functions in an acceptable
manner. Moreover, although the veteran's symptoms were
described as severe in August 1998, the Board notes that the
examiner nevertheless indicated that the psychiatric
disability is productive of only moderate to marked
impairment, GAF scores assigned the veteran are in accord
with a moderate level of disability, and none of the other
medical evidence of record suggests severe impairment in the
ability to establish and maintain effective or favorable
relationships or in the ability to obtain or maintain gainful
employment.
The Board notes that the veteran maintains no social contacts
from work and few social contacts outside of work, and has
essentially contended that he is isolated. However, the
record reflects that the veteran, while he encounters
difficulty with relating to coworkers, nevertheless is
demonstrably capable of performing his duties, and in fact
has a supervisor who is tolerant of the veteran's emotional
limitations. With respect to social interaction outside of
work, the record reflects that the veteran's family is very
supportive, and that the veteran does maintain a friendship
outside of his family. Moreover, the veteran reportedly does
leave his residence when accompanied by family members.
Although the veteran's psychiatric symptoms clearly involve
marked social impairment, VA examiners nevertheless have
indicated that the veteran is able to maintain a secure
relationship with his family.
Although the veteran's flexibility levels at work are clearly
impaired, the record reflects that the veteran has been
employed in the same position for many years, and is able to
perform assigned duties in an acceptable manner. Moreover,
while the veteran describes his supervisor as unsympathetic,
he nevertheless reports that his supervisor is tolerant of
his limitations and controls his tendency to drift from
assigned duties. In addition, the examiner at the veteran's
August 1998 VA examination concluded that while the veteran's
symptoms were severe, he nevertheless was demonstrably able
to maintain employment, assigning a GAF score consistent with
this evaluation. Accordingly, the Board concludes that a 50
percent evaluation for the veteran's service-connected
psychiatric disability, to include PTSD, is warranted under
the previous criteria.
B. New Rating Criteria.
As noted previously, effective November 7, 1996, VA revised
the criteria for diagnosing and evaluating psychiatric
disabilities. The new rating criteria for psychiatric
disability are found at 38 C.F.R. § 4.130 (1998).
Under 38 C.F.R. § 4.130, Diagnostic Codes 9400, 9411 (1998),
a 30 percent rating is warranted for occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due
to such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events). A 50 percent evaluation is
warranted for occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships. A 70
percent rating is warranted for occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. A 100 percent evaluation is warranted for
total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name.
Although the evidence shows that the veteran complains of
impaired impulse control and difficulty in establishing or
maintaining effective relationships, the Board notes that the
veteran's psychiatric symptoms do not reflect any of the
criteria for a higher rating under the new regulations such
as suicidal ideation, obsessional rituals which interfere
with routine activities, intermittently illogical, obscure,
or irrelevant speech, spatial disorientation, or neglect of
personal appearance and hygiene. Although the veteran
reported occasionally losing his temper, as noted previously
he has denied any homicidal ideation or significant history
of violence, and the veteran admittedly maintains a moderate
level of control over his outbursts. In addition, despite
evidencing anxiety and depressed affect, there is no
indication that the veteran exhibits near continuous panic or
depression. As noted previously, although the veteran
maintains no social contacts at work and few outside of his
home, his family relationships have been maintained and he
has at least one friend. In addition, despite a clear
reduction in flexibility levels at work, the veteran is
nevertheless able to perform his assigned tasks in an
acceptable manner. The veteran has not manifested any
delusions or hallucinations, and has presented as alert and
oriented, without any speech abnormalities, and recent VA
examinations have consistently assigned GAF scores consistent
with the conclusion that the impairment occasioned by the
veteran's psychiatric disability is moderate in nature.
Accordingly, the Board concludes that an evaluation in excess
of 50 percent for the veteran's service-connected psychiatric
disability, to include PTSD, is not warranted under the new
criteria.
ORDER
Subject to the provisions governing the payment of monetary
benefits, a 50 percent disability rating for psychiatric
disability is granted.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
Department of Veterans Affairs